Alabama Great Southern R. Co. v. Gambrell, 6 Div. 754

• Decision Date: 10 March 1955
• Docket Number: 6 Div. 754
• Citation: 78 So.2d 619,262 Ala. 290
• Parties: ALABAMA GREAT SOUTHERN RAILROAD CO. v. Robert M. GAMBRELL.
• Court: Alabama Supreme Court

Page 619

78 So.2d 619

262 Ala. 290

ALABAMA GREAT SOUTHERN RAILROAD CO. v. Robert M. GAMBRELL.

6 Div. 754.

Supreme Court of Alabama.

March 10, 1955.

Cabaniss & Johnston, Leigh M. Clark and E. T. Brown, Jr., Birmingham, for appellant.

Here, Wynn & Newell and Frank L. Parsons, Birmingham, for appellee.

STAKELY, Justice.

This is an appeal by defendant from a judgment of the trial court granting plaintiff's motion for a new trial. The action was under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and the plea was in short by consent. The trial resulted in a judgment on a verdict in favor of the plaintiff and against the defendant for the sum of $15,000. The trial court did not specify the grounds of the motion furnishing the basis of its action but it did specify that its action was not based on grounds numbered, respectively, 8, 9, 10, 11, 12, 15, 42, 43 and 44.

Plaintiff was a fireman on south bound train No. 37 that collided with north bound train No. 48 at Woodstock, Alabama, on November 25, 1951. The track was that of defendant and both trains were being operated by agents, servants and employees of the defendant. Just before the collision th plaintiff jumped from the engine of the train and was injured. It is conceded that he was entitled to have his case submitted to the jury. There was no contention that he was guilty of contributory negligence.

Ground 8 of the motion for a new trial is, 'because the verdict of the jury for the plaintiff is inadequate.'

Ground 9 of the motion for a new trial is, 'because the verdict of the jury is contrary to the great weight of the evidence as to the extent of the damage sustained by the plaintiff.'

Ground 10 of the motion for a new trial is, 'because the verdict of the jury is so inadequate as to show on its face that it is the product of prejudice or improper conduct of defendant's counsel.'

There were 47 grounds on which the motion for a new trial was based. Since the court granted the motion for a new trial, the action of the court is sustainable if there was any proper ground in the motion, regardless of whether the ruling may have been rested on an improper ground. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224. From our examination of the brief of appellee we do not think it necessary to discuss each ground of the motion since that would unduly prolong the opinion. Rather it seems to us to be appropriate to consider those grounds which are stressed in brief by the appellee as being grounds adequate to support the ruling of the court. In considering these grounds we see no good reason to go into great detail because these grounds cover many pages of the record and constitute a running fight between counsel for the plaintiff and counsel for the defendant practically throughout the trial. Bofore coming to a statement of the grounds to be considered it is well to remember that the court expressly specified that its action was not based on certain specifically numbered grounds. In other words, in excepting Ground 8 the court held that it was not acting because the verdict of the jury was inadequate. In excepting Ground 9 the court held that it was not acting because the verdict of the jury was contrary to the weight of the evidence as to the extent of the damages suffered by the plaintiff. In excepting Ground 10 the court held that the verdict was not so inadequate as to show on its face that it was the product of prejudice or improper conduct of defendant's counsel.

In reviewing this case we do so with the though that both counsel for the plaintiff and counsel for the defendant are able attorneys each doing his best to represent his client. As was said by Justice Gardner in Arant v. State, 232 Ala. 275, 167 So. 540, 544, 'we must not lose sight of the fact that a trial is a legal battle, a combat in a sense, and not a parlor social affair.' To put it a little differently, it is expected that counsel will strike hard blows in behalf of his client but, of course, the blows must not be foul blows. Then, too, we must not lose sight of the fact that litigation is to determine the rights of the parties to the suit and that is the matter of paramount importance notwithstanding that we may disapprove of the method pursued in argument. Alabama Great Southern R. Co. v. Swain, 248 Ala. 535, 28 So.2d 714. Furthermore statements or argument of counsel which are provoked or producted by statements or arguments of opposing counsel can furnish no ground for complaint or corrective action. Tea Java Coffee Co. v. Saxon China Co., 207 Ala. 33, 91 So. 885; Alabama Power Co. v. Bowers, 252 Ala. 49, 39 So.2d 402.

In matters of this kind we put great stress on the action of the lower court because the court has an opportunity for observation which the appellate court does not have. But in the present instance the court expressly held that the verdict was not inadequate, that the weight of the evidence was not against the adequacy of the verdict and that the verdict did not show on its face bias or prejudice on the part of the jury. It is argued, however, that the court has inherent power to grant a new trial on account of misconduct in its presence without regard to the probable effect upon the verdict and further that the court's order as a matter of law amounts to a holding that the improper conduct probably affected the amount of the verdict adversely to the plaintiff. The plain language of the court, however, shows that an adequate verdict has been returned in the opinion of the court. If this be true, should we disregard the rights of the parties to the cause? The fact that the verdict is not unjust is a material if not a decisive factor in determining whether the new trial should be granted. Alabama Power Co. v. Bowers, supra; American Railway Express Co. v. Reid, 216 Ala. 479, 113 So. 507; Mobile Light & R. Co. v. Gallasch, 210 Ala. 219, 97 So. 733.

There are other considerations which should be kept in mind in deciding the action to be taken by us. In every instance where prejudicial conduct was claimed, the court took repressive action and expressly instructed the jury not to consider the words or attitude of counsel. Often we have held that such action on the part of the court removes the harm. Smith v. Clemmons, 216 Ala. 52, 112 So. 442; Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 53 A.L.R. 840; Birmingham Electric Co. v. Latham, 249 Ala. 592, 32 So.2d 515; Alabama Great Southern R. Co. v. Swain, supra. At a number of points in the course of the trial counsel for the plaintiff stated that undoubtedly a motion for a mistrial would lie but that he would not make the motion. In fact at no stage in the trial or before the case was submitted to the jury was there any motion for a mistrial. This seems to us to be a speculation on the verbict of the jury. If there was prejudicial conduct counsel should have insisted on a mistrial and not submitted the case to the jury and then seek to set the verdict aside because of perjudicial conduct, "unless the argument was 'so grossly improper and highly prejudicial, that its evil influence and effect could not be eradicated from the minds of the jury by any admonition from the trial judge."' National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So.2d 492, 497.

This brings us to a consideration of the specific grounds which are alleged to amount to prejudicial conduct. As stated, we shall not undertake to go into these matters in great detail but will try to state them as simply as possible.

It appears that counsel for the plaintiff not only represents the plaintiff in the instant case but also represents the plaintiff in a suit brought by the widow and administratrix of the estate of P. G. Powers, deceased. P. G. Powers was the engineer who was operating the train at the time of the disaster when Robert M. Gambrell, the fireman on the engine in the instant case, was forced to jump. Counsel for the defendant claimed inconsistency in the position of the plaintiff's attorney in these two cases, since in the Gambrell case P. G. Powers was claimed to be negligent in running through a red signal, while in the Powers case such action could have a damaging effect. It is insisted that by this position, plaintiff's counsel was subjected to a charge of insincerity. In the course of the trial in the instant case counsel for the plaintiff later undertook to show that the accident was not the result of any failure on the part of P. G. Powers, the engineer, but rather was the result of mechanical failure of appliances of the railroad. We can understand the tactics and position of both attorneys and again we say that each was trying to represent his own client as best he could. We do not consider that this conduct or line of discussion was so prejudicial as to bring about the setting aside of the verdict.

Another group of remarks of counsel for the defendant which is criticized grew out of testimony of Dr. Terhune. Dr. Terhune was summoned as a witness for the plaintiff and waited at the court for a considerable time before he was called as a witness. The plaintiff then decided not to use him as a witness and so announced. Defendant's counsel felt that the defendant was being put in a hard position because he wanted to use Dr. Terhune as a witness at a more appropriate point in the trial and yet did not want to keep Dr. Terhune waiting around the court room. This led to heated words between counsel. Dr. Terhune was then called to the witness stand by the defendant and in the course of his testimony he testified that Robert M. Gambrell, the plaintiff in the instant case, told him that he had received advice from friends not to go back to work until there had been a disposition of the instant case. Now we are not undertaking to say whether Dr. Terhune told the truth or not. Even if this placed counsel for the plaintiff in a position of embarrassment we connot understand why defendant's counsel...